Skepticism

EVENTS

I’ve been served!

I just got handed a subpoena from Ben Radford’s lawyers, and I am ordered to produce:

All communications, including email and voicemail communications, letters or memoranda, to or from Karen Stollznow from January 1, 2013 through the present including, without limitation, communications relating to Ben Radford by name or by implication.

All email and voicemail communications to or from any person, persons, groups or organizations relating to Ben Radford or Karen Stollznow or both of them.

Copies of all blog posts or comments authored by you that relate to Karen Stollznow and/or Ben Radford.

Is this some kind of fishing expedition? Or is Radford just doing the asshole version of a vanity search?

I did a search. I’ve got ONE (1) email from Karen Stollznow in my email archive from that date that mentions Radford. Sorry, guy, there really isn’t a conspiracy, and there isn’t a collection of juicy stories that are being passed around behind your back. We’re just not that into you. Stollznow and I are casual acquaintances, I’m sorry to say, so we also haven’t indulged in much offscreen chit-chat.

Just curious, legal people out there: it would be easy to forward that one email, but I’m really not keen on helping this guy dig for trash. Am I legally obligated to send it along?

Also, in a strike against his vanity, I don’t talk about Radford behind his back — he’s just not that interesting. Everything I’ve said about him has been on the blog.

Just curious, legal people out there: it would be easy to forward that one email, but I’m really not keen on helping this guy dig for trash. Am I legally obligated to send it along?

Although I don’t meet that standard, I still think the best answer would be “consult an attorney, in person, that you know has passed the bar in the state of Minnesota”. If nothing else, you’ll want to make sure that these are actual lawyers he’s hired and not just cranks making shit up.

Being that it’s court ordered, you’ll have to give up the goods or risk being held in contempt of court. You could file a motion to quash if you feel it might incriminate you or cause undue tribulation and the like, but you’ll want a lawyer for that, and you’ll probably be drug into court to explain yourself. Yuck.

Don’t mess around and consult an attorney. If anyone is willing to use the court system as a weapon against you, you need to be prepared with a good shield. It’s annoying to spend the money on a consult with a lawyer, but it’s better to do it now and make sure that weapon won’t be turned on you too (and force you to pay out even more legal fees).

So, because he’s so angry that people said some mean things about him a few years ago, his response is… to dredge it all up again to remind everyone of the mean things that were said about him that probably most people already forgot about. Talk about an own goal.

Legal person here (not in your jurisdiction though): do NOT deliberately disobey a subpoena. If you really don’t want to hand over the email or find the posts for them, then you need to consult with a local attorney to find a legal way to quash the order. Especially considering that this post demonstrates your understanding of the nature of a subpoena, a judge would not look kindly on a decision to go out of your way to ignore or undermine it. First rule of the legal system: CYA.

You’re going to need to consult a real lawyer for good answers, and I’m not one at all (much less one admitted to the Minnesota bar); I just argue with real lawyers on the internet. This may be akin to someone who argues with biologists on the internet about biology; possibly learning a few things, more likely having at least a few dangerous misconceptions (and possibly a full blown whacko framework), and not even close to a substitute if you actually need the real deal. If this impacts your work email, you probably can get some general advice from someone at the UMN legal office, but you probably will need to check with your own for specifics, and your university emails may be more subject to release depending on the FOIA laws in your state.

My guess is that with the help of a lawyer you might be able to challenge the validity of the subpoena (as lacking sufficient actual legal authority, having overbroad scope, being unduly burdensome, something else?), but trying to flat ignore it would be legal analog of shooting yourself in the foot — probably not fatal, but damaging and making it more difficult to deal with followup. Even with the help of a lawyer, it may stand as valid.

Presuming the subpoena is valid after any considered challenge, you probably do have a legal obligation to run such the search mentioned in item #3 for them. Including an addendum on how such searches are run, with detailed examples from the demanded search of exactly that one was done, might be legally permissible, but a sensible lawyer would probably advise against being too snarky. For #2, a negative result probably means an obligation to let them know that you looked, how you looked, and that you turned up nothing. For #1 (and still presuming), unless the subpoena is invalid or invalidated, you almost certainly need to turn over that email, unless it is encompassed by some manner of legal protection. (EG, if the mention is a passing mention in an email communicating with a student about their academics, it might be subject to FERPA; if you were emailing your lawyer, it might be considered a privileged communication with counsel.)

This may be harassment, intended to force you to waste time and money. Unfortunately, doing just that may be unavoidable for you. Your lawyer can tell you how much trouble you can get in for trying to bill Radford for your time, but certainly you shouldn’t expect such a bill to get paid if you were to include one.

Since the comment that I’m writing right now is itself a comment on a post that mentions Ben Radford, will this comment be read into evidence? If so, I would like to say the following. . .
neocon
neocon
neocon

#17 Thomathy: No, you are mistaken. Lawyers can issue subpoenas, they do not need a judge to sign off. A court order is signed by a judge. Many subpoenas are in fact invalid, but lawyers try them hoping the respondent won’t know that. For examples, a subpoena for medical records is not enforceable, in fact the law requires that it be refused. To get medical records, you need a court order, signed by a judge, and it can still be contested. You can respond to a subpoena yourself and say why you don’t have to honor it. Then they need a court order.

As another commenter commenting on a post concerning Ben Radford I’d like to say: fuck litigious assholes! I also thought they’d resolved all that stuff with Karen and signed a mutual agreement =/ Sounds like Ben is trying to get old material taken down to erase any footprint of the whole thing ever happening.

Wow.
I admit that my society takes your communication to be very private and very protected, this just seems surreal to me.
The idea that you have to hand over your communication is completely alien. Sure, a court could seize it if your were suspected of a serious crime, but some git just ordering you to hand it over? Surreal!

Cervantes, in the field of law in which I work (I am not a lawyer), subpoenas have to be authorised by the judge (or presiding Member, as the case may be). I didn’t say they were court orders (those are something different), but something ordered by the court. Summons are very similar in this regard. I erroneously assumed this would be the case everywhere.

It would be cool if you posted the actual letter he served you with. I work in a lawfirm, and I see a bunch of loony legal documents, and it’s possible he just sent a nasty gram. Aside from that, I think speaking with a private attorney would be your best bet.

As this comment may be entered into evidence, I would like to take the opportunity, should it please the court, to note for the record that the Plaintiff, Benjamin Radford, is a skeptical lightweight who made his name by investigating phenomena that any reasonable person can dismiss as ridiculous. This statement does not constitute defamation as it is both personal opinion, and is verifiable by tangible evidence. Furthermore, let it be entered into the record that the Plaintiff, Benjamin Radford, is, in my opinion, an excessively litigious individual who is abusing the legal system for personal gain. This, again does not constitute defamation as it is verifiable, and is a sincerely held personal opinion.

Subpoenas are usually issued by the clerk of the court in the name of the judge presiding over the case. Additionally, court rules may permit lawyers to issue subpoenas themselves in their capacity as officers of the court. . . .

Also, the party being subpoenaed has the right to object to the issuance of the subpoena, if it is for an improper purpose, such as subpoenaing records that have no relevance to the proceedings, or subpoenaing persons who would have no evidence to present, or subpoenaing records or testimony that is confidential or privileged.

Standard disclaimer: Not a lawyer in your jurisdiction, not your lawyer, consult your own lawyer.

Every subpoena I’ve ever dealt with was an official court document, either issued by a judge or by a lawyer with approval of a judge.

Lawyers send requests for production. These are not court orders, and the worst that will come of ignoring them is a subpoena. Lawyers also send requests that look official to trick people into giving up things they don’t need to.

IANAL, but unless you have been named as a witness and subpoenaed for testimony I don’t think that you are legally bound to provide any part of your private communications unless a court orders it. Ben Radfords lawyer can ask, but has no recourse if you decline but to petition the court. Relevant MN legalese can be found here. Here is the some relevant language from rule 45. It seems like this subpoena falls under clause E.

(d)Subpoena for Taking Deposition, Action Pending in Foreign Jurisdiction.A subpoena for attendance at a deposition to be taken in Minnesota for an action pending in a foreign jurisdiction may be issued by the court administrator or by an attorney admitted to practice in Minnesota in the name of the court for the county in which the deposition will be taken, provided that the deposition is allowed and has been properly noticed under the law of the jurisdiction in which the action is pending. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, electronically stored information, or tangible things that constitute or contain matters within the scope of the examination permitted by the law of the jurisdiction in which the action is pending, but in that event, the subpoena will be subject to the provisions of Rules 26.03 and 45.03(b)(2).(e)Notice to Parties.Any use of a subpoena, other than to compel attendance at a trial, without prior notice to all parties to the action, is improper and may subject the party or attorney issuing it, or on whose behalf it was issued, to sanctions.

After reading through rule 26 it seems that harrassment cases are not subject to disclosure, and that all you have to do is refuse on the grounds that anything you have written about BR is public information and you are not a party to the harassment proceedings. Then the lawyer will have to convince a local judge that you have relevant information, which isn’t bloody likely considering rule 26.02 (b).

Discovery must be limited to matters that would enable a party to prove or disprove a claim or defense or to impeach a witness and must comport with the factors of proportionality

I would love to sit in on that hearing. ” Your Honor, my client has hurt fee-fees been defamed because multiple people have officially outed him and filed a sexual harassment lawsuit.” In my mind, the judge takes great pleasure in throwing them out of court and imposing sanctions on the lawyer for filing frivolous lawsuits. The fact that lawyers charge many dollars per hour billable to someone as vile Ben Radford would be a bonus.

Pretty much the only good advice that has been offered in this thread is “talk to a lawyer.” (Although I’d say I basically agree with what cervantes has said.) So I’m writing just to clear up a few misconceptions and speculations I’ve seen:

It’s my understanding that, after the New Mexico court dismissed the suit without prejudice for lack of personal jurisdiction, Radford re-filed in federal court in Colorado. see, e.g. So we’re talking about federal court here.

Attorneys are authorized to issue subpoenas on behalf of a federal court. See Federal Rule of Civil Procedure 45(a)(3).

A court “may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.” FRCP 45(g).

A subpoenaed party can serve objections to a subpoena, see FRCP 45(d)(2)(B), which then puts the burden on the subpoenaeing party to bring a motion to enforce the subpoena. But that’s not a cost-free way of saying fuck you to Radford’s attorneys: if they bring a motion to enforce the subpoena under FRCP 37 and succeed, the court can award them they attorneys’ fees and costs in bringing the motion, which can run into the thousands.

Honestly, and I say this as someone with no sympathy for Radford or his case, but I don’t see this subpoena as outrageously broad or unusual. Attorneys use broad language so that reluctant witnesses don’t exploit (or invent) loopholes to avoid producing relevant documents. And telling someone “go use the search function” is not likely to impress a judge.

Basically:
1. Don’t ignore a subpoena. Especially not because you think “it’s not signed by the court” and so you believe you can disregard it with impunity.
2. If it’s truly burdensome or invasive to respond, then serve appropriate objections, and do it before the deadline — which is NOT necessarily the same as the date for compliance. Don’t be obstreporous just because you don’t like the subpoenaing party or are outraged that somebody subpoenaed you — this is how the system works. Courts will protect non-parties from abusive discovery practices, but not from moderate inconvenience.
3. If you’re wondering what constitutes things like “burdensome” or “appropriate objections,” or what the deadline is — these are all good reasons to talk to a lawyer.

DO NOT ignore this. And absolutely get a lawyer. Your lawyer may be able to quash part or all of this but you CANNOT ignore it. It sucks but there you go. (I have consulted with someone who, while NOT A LAWYER, does have a law degree.)

Tethys, you’re citing to the Minnesota state court rules. I’m pretty sure that, given this is in federal court in Colorado, that the subpoena would come from a federal court and the FRCP would apply. (I also think you’re misreading the state rule anyway — it says the subpoena is invalid if notice wasn’t provided to the other parties, which we have no reason to think was the case here. And the standard of relevance for discovery purposes — as opposed to admissibility at trial — is very broad,.)

Prima facie, he’s harassing you, though I don’t know exactly what a good lawyer would advise. In business, I’ve seen one turn a claim made against my company into a claim we won (and deserved to), an outcome we couldn’t even imagine because we thought we were screwed.

It really sucks when interpersonal disputes get dragged into law courts where they don’t deserve to be. I’ve been on the other side, where someone who happened to be a lawyer refused to pay a debt to me until I finally filed in small claims court; I got a check literally on the courthouse steps, on the day of the hearing (i.e. they wouldn’t face the judge).

A subpoena… is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure.

I once was “subpoenaed” by a legal firm for records associated with a project involving a former client of mine, whom they were acting for (my client breached contract repeatedly, I terminated the agreement as was my legal right). My own lawyer read it and said to throw the demand in the thrash – I was not at all obliged to respond in any fashion, and certainly was is no way required to submit anything to them, unless it was a writ from a court. I was told that a “subpoena” from a legal firm was nothing more than a fishing expedition.
So yes, go talk to a qualified legal person, who will hopefully give you lots to laugh about.

I concur with the other legal opinions. Contact an attorney immediately and file a motion to quash. The requests appear extremely broad and invasive. This is most definitely an fishing expedition and it’s intended to rattle you.

So, actual lawyer here, though I am not admitted in Minnesota (though I am guessing this case is in Federal Court, perhaps?). First, as everyone says, blog commentary, even from lawyers, is no substitution for an in-person consultation with an experienced attorney, especially since I am not terribly familiar with the underlying case. That being said, I’m happy to give my initial impression. That impression is: (1) the subpoena is actually fairly narrowly tailored, believe it or not. Though there has been much laughter over comments being produced, as I read it, only comments authored by Dr. Myers are requested. (2) Though I would advise getting a lawyer to do so, it’s likely easier to just respond. It sounds like the volume of responsive documents would be low, and thus not too much bother. You could certainly bring a motion to quash the subpoena, but I’m not seeing any obvious basis for doing so (the most common objections, overbroad and oppressive, don’t pass the laugh test here for me). And, moreover, there would be a very large cost differential. I would not be surprised if the difference between a simple subpoena response and a motion to quash is a factor of twenty times or more. If you can find someone to handle it pro bono, more power to you. I fully understand it is irksome to hand over anything at all to someone whom you respect so little, but that’s the discovery regime we’ve chosen!

aelfric @53 speaks wisely. Unless you’re looking to pick a legal fight, print (or copy to disc) the one damn email and whichever blog posts come up in the search results, produce it, and call it a day.

hoku @54, it’s technically possible, but given that there’s already litigation pending, meaning that it’s a trivial exercise to issue and serve a subpoena, I would say the odds that Radford’s lawyers would instead just send some letter requesting voluntarily compliance — to someone Radford has obviously told them is not friendly — are infinitesimal. Even friendly witnesses usually get subpoenaed for a variety of precautionary reasons.

Well, if PZ has to present documents, he could always do what the tobacco companies did and bury Radford with an over-compliant response. I doubt his a lawyer has the ability to handle a mountain of paper. Actual paper. Preferably in banker’s boxes.

1) Get a lawyer.
2) DO NOT PERSONALLY SEND ANYTHING to Ben Radfords lawyer. Send it to your lawyer stating that you complied with point X of the subpoena with the documentation of compliance. Then let your lawyer send it to Ben Radfords lawyer.
3) Ask if your lawyer thinks he can challenge the first item on the without limit part and the by implication part. Combined both would would require you to include the entire internet in the broadest possible reading.
4) Ask if your lawyer thinks he can challenge the 3rd item. Try to get it limited it to your blog and see if you can get a date limit on it as well (2nd item as well a date limit).
5) Expect to do the work on the 3rd item yourself. It most likely not be considered unduly burdensome seeing as you pointed out that all of those can be found with a search. Do note that the 3rd item is currently not limited to your blog or freethoughtsblogs.com due to the “comments you authored”-part.
6) Try to see if your lawyer can get a list of keywords you have to search on for your email and blog. And what blogs if the 3rd item doesn’t get limited to your own. That will prevent later accusations of not providing items requested.
7) Document every step you do when you look up information. This is an insurance policy to prevent accusations of negligence. For example if you don’t have voice mails or texts because you regularly delete them after not needing them any more document why/when you delete them. Do note that as of this point you are notified to preserve any such items and deleting them will be considered spoilage of evidence.

First time commenter and agreeing with everyone that recommends You to get a lawyer I still want to point out one little wrinkle…

Get Your own lawyer. Your employer might offer to help with this but then You may end up with a lawyer that actually has Your employer’s best interest first in mind before Your personal best interest. En they may or may not always be the same.

Of course you should ask an actual lawyer for legal advice as soon as you verify that what you have received is a legal subpoena and not as noted above a scary looking but not legally binding bit of paper. An actual subpoena should contain contact information for the court, and the timeframe in which you need to respond. The search function for pharyngula doesn’t seem to work, and a google search returns one blog post besides the OP. No, It could never happen to her. If one e-mail and one blog post is the extent of your communication, it is probably simplest to render them (after running them by the lawyer) no matter how galling, and remember that truth is an absolute defense against charges of defamation. Since slimeball has indeed been sued for sexual harassment, your blog post reporting that fact and initially withholding Ben Radford’s name actually disproves the defamation claim.

Tethys, you’re citing to the Minnesota state court rules. I’m pretty sure that, given this is in federal court in Colorado, that the subpoena would come from a federal court and the FRCP would apply.

AFAICT, there is no such thing as federal criminal defamation law code, though several states have such laws. Again IANAL, but wouldn’t that mean that the relevant law PZ is subject to would be Minnesota state law, not Colorado state law?

Subd. 3.Justification. Violation of subdivision 2 is justified if:
(1) the defamatory matter is true and is communicated with good motives and for justifiable ends; or
(2) the communication is absolutely privileged; or
(3) the communication consists of fair comment made in good faith with respect to persons participating in matters of public concern; or
(4) the communication consists of a fair and true report or a fair summary of any judicial, legislative or other public or official proceedings; or
(5) the communication is between persons each having an interest or duty with respect to the subject matter of the communication and is made with intent to further such interest or duty.

Based on that clause, it seems that everything PZ has written is considered completely justified and legal free speech.

@hoku – Lawyers can issue subpoenas in the US. See FRCP 45(a)(3) (“An attorney also may issue and sign a subpoena if the attorney is authorized to practice in the issuing court”) and a sample form promulgated by the federal courts.

If the issue is allegations of harrassment in the general sense, Myers could probably include all personal e-mails tweets and personal blogs from Michael Nugent. The case could last decdes while they plough that stuff.

Let’s take a few steps back. Please don’t be insulted, but you packed a number of misconceptions into that post:

First, PZ has not been sued. He’s been subpoenaed as a nonparty witness. Whether PZ has engaged in protected free speech or not is irrelevant, because Radford is not formally accusing him of defamation or any other tort. A witness is just someone who a party thinks may have information relevant to a pending lawsuit. If you were a bystander to a traffic accident, one of the drivers might subpoena you and seek your testimony and/or any emails or other communications you had with anyone about what you saw — you’re not being accused of doing anything wrong, and you had every legal right to tell your friend Bob or everyone on your Twitter feed about what you saw, but that doesn’t alter your obligation to produce responsive documents.

Second, although Radford is accusing Stollznow of defamation, this is a civil matter. Criminal law is irrelevant, so your reference to “federal criminal defamation law code” is a nonsequitur.

Third, while it is true that state law will supply the underlying law on which Radford’s case against Stollznow will be decided, it won’t be the law of Minnesota unless there is some connection to Minnesota of which I’m unaware. Quite likely it will be the law of Colorado, where the action is pending, though choice of law issues are tricky and I don’t know enough about the facts of this case, where the alleged defamation took place, etc., to say with any confidence.

Fourth, while the question of whether Stollznow defamed Radford (or any of the other ultimate claims) may be matters of state law, questions of procedure in a federal court matter — such as the issuance and enforcement of subpoenas — are governed by the Federal Rules of Civil Procedure. So, with some exceptions not worth getting into, Minnesota statutes aren’t relevant here.

Ben Radford: not that I know for sure, but there seems to be a lot of credible evidence on the internets (including a certain brand-new shiny subpoena, for example) that he’s a hella creeptastic douchenozzle that self-respecting human beings should avoid like the ten plagues of Exodus.

*Waits for a court stenographer to read that back, maybe, some day, that it may enter the legal record of the USA and be searchable in perpetuity throughout the Universe

No worries! I am not at all insulted by your attempts at educating me on the finer points of civil law. I did realize that PZ has merely been subpoenaed as part of radfords defamation lawsuit, and is not the defendant.

Third, while it is true that state law will supply the underlying law on which Radford’s case against Stollznow will be decided, it won’t be the law of Minnesota unless there is some connection to Minnesota of which I’m unaware. Quite likely it will be the law of Colorado, where the action is pending, though choice of law issues are tricky and I don’t know enough about the facts of this case, where the alleged defamation took place, etc., to say with any confidence.

I was trying to be succinct and left out a few steps in the logic train, but this is what I was getting at with citing state law. In the absence of federal law, the state law will be applicable even though none of the parties is a resident of Colorado? It seems odd that Radford can refile a case in federal district court of Colorado after it was thrown out of New Mexico’s state court on the basis of merit. In any case it is a moot point, PZ has complied with the subpoena and hopefully the Colorado court comes to the same verdict as the New Mexico court, with extreme prejudice.

It seems odd that Radford can refile a case in federal district court of Colorado after it was thrown out of New Mexico’s state court on the basis of merit. In any case it is a moot point, PZ has complied with the subpoena and hopefully the Colorado court comes to the same verdict as the New Mexico court, with extreme prejudice.

That would be odd — the doctrine of res judicata would prohibit him from re-filing a suit that had already been decided on the merits — but I believe that your assumed facts are incorrect. There was no dismissal on the merits. Without looking up the various dockets again, I believe the chain of events is this:
1. Radford files case in New Mexico state court.
2. Stollznow removes the case to New Mexico federal court (USDC NM), where she files a motion to dismiss for lack of personal jurisdiction, i.e. claiming that she lacks sufficient contacts with New Mexico to be sued there.
3. The USDC NM grants the motion and dismisses the case, without prejudice, based on lack of personal jurisdiction. As far as I recall, there was no ruling on the merits.
4. Radford files in the federal court in Stollznow’s home state of Colorado, which he had the right to do because the prior dismissal was without prejudice.

Oh, and at least according to the Colorado complaint, Stollznow is alleged to be a resident of Colorado, so there is the (alleged) connection and reason for filing there.

It’s a little odd — Stollznow’s answer denies the allegations of the paragraph about residency, but that could just be because that paragraph has some other allegations tied up in it and so she’s denying on that basis rather than disputing her residency specifically.

Ah, that makes much more sense. It was thrown out of New Mexico court because they have no jurisdiction, not because of the merit of the case. It is not stated that way in the timeline linked above at #3.

If you’ve been subpoenaed for information, there’s presumably an obligation to make it available, but is there any obligation to do anything that the other party could do for themselves? For example, with regards to the pervert’s third request, would sending an archive of the entire site, and telling them to sort it out for themselves be sufficient?